“Throughout history, it has been the inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph.”
Haile Selassie

Friday, March 21, 2014

Yesterday, in a 3-0 decision, the federal Seventh Circuit Court of Appeals slapped down the Marion County Election Board for its decision to enforce in the 2010 Democratic Primary to enforce an unconstitutional law the Board had agreed in 2003 that it would not enforce. Last month, I outlined the facts of the case in a blog post:

Some background ... When I ran in the Republican primary for Clerk in 2002 , I had a handout at the poll that featured my name and Joe McAtee's. McAtee was running for Marion County Sheriff, a position he had held earlier for two terms. McAtee like me had not been slated by the party. My handouts, as well as the Indiana Right to Life's list of endorsed candidates, were seized as being in violation of Indiana's Slating Statute which prohibits candidates from handing out literature with multiple names on the handouts unless the literature is first filed with the Election Board along with written approval from the candidates who are featured on the literature.

Zach Mulholland

After the primary, Jim Bopp's law firm out of Terre Haute contacted me about being a plaintiff in a free speech case challenging the Slating Statute. I agreed to participate. A lawsuit was filed with me as the plaintiff along with Indiana Right to Life which had its list of endorsed candidates seized at the same primary. Our complaint asked that the Slating Statute be declared unconstitutional and the Board enjoined from enforcing it. The Marion County Election Board, which was represented by the Attorney General's Office, entered into an agreed judgment, a consent decree stating that the law was unconstitutional on its face and the Board would be enjoined from enforcing it. The case's citation is Ogden v. Marendt, 264 F. Supp. 2d 785 (S.D. Ind. 2003)

Nine years later Zach Mulholland was running for state legislature against Dan Forestal in the Democratic primary in House District 100. It was shaping up to be a hotly contested race. Forestal was the slated candidate, but on primary election day Mulholland had every polling place covered with volunteers handing out his literature.

Mulholland's literature included one handout that suggested voting for President Obama, Joe Donnelly, Andre Carson, John Gregg, and Zach Mulholland. (Mulholland, an attorney, knew that the Slating Statute had been held to be unconstitutional in my case.) On the day of the primary, the Election Board met and voted 3-0 to seize Mulholland's literature for violating the Slating Statute, despite the fact that the Board had agreed that law was unconstitutional and the Board would not try to enforce it. Democratic Party officials went out to the various voting locations and seized Mulholland handouts from the candidate's volunteers. Mulholland lost by 730 votes to Forestal.

Following the primary, Mulholland retained the ACLU to file a lawsuit. But, in a development that proved perplexing to the Seventh Circuit judges, the ACLU filed the lawsuit, asking for an injunction against the Board enforcement of a statute already declared unconstitutional and for damages, was filed in state court rather than the federal Southern District of Indiana which had entered the injunction in 2012. Meanwhile the Election Board attempted to conduct an investigation and ordered Mulholland to appear. Later, Mulholland filed a federal lawsuit again asking that it, again, be declared unconstitutional and that the Election Board, again, be enjoined from enforcing it.

In September of 2013, District Court Judge Sarah Evans Barker dismissed Mulholland's federal lawsuit citing the abstention doctrine set forth by the United States Supreme Court in Younger v. Harris, 401 U.S. 37 (1971). Basically that case holds that when there is a state court proceeding any subsequent federal litigation on the same topic cannot proceed. There is, however, an exception to the Younger doctrine namely extraordinary circumstances like "bias or harassment."

In what I found most surprising though was that Judge Barker bought the Election Board's far-fetched argument that the decision in my case that the Slating Statute was facially unconstitutional and the Board would be enjoined from enforcing it, only applied to me and Indiana Right to Life. For everyone else, according to the decision the statute was still in effect and enforceable.

In the unanimous opinion written by Seventh Circuit Judge David Hamilton, the Younger doctrine was found to be inapplicable and the court rejected the notion that a facially unconstitutional law (which means the particular facts of a case don't matter) could only be unconstitutional as to the particular litigants in a case, a theory that Judge Hamilton stated:

We reject the
Election Board’s oxymoronic argument that the judgment in Ogden should be read to
mean that the statute is facially unconstitutional only as to the Ogden plaintiffs.
We have not encountered before the idea of facial unconstitutionality as applied
only to a particular plaintiff. Facial unconstitutionality as to one means facial
unconstitutionality as to all, regardless of the fact that the injunctive portion
of the judgment directly adjudicated the dispute of only the parties before it. (Citations omitted.)

The Court then dropped a footnote to give the Election Board a stern warning about continuing to enforce the unconstitutional law against non-slated candidates:

If Board members or their agents were to try to enforce the anti-slating statute against other parties at this point, such as in the May 2014 primary elections, we expect that this opinion and the Ogden judgment would make it difficult to invoke the defense of qualified immunity to a damages action under 42 U.S.C. § 1983.

Translation, if members of teh Election Board, and the thugs who enforced the order against Mulholland on behalf of the Board, attempt to pull this stunt again, they could be personally held liable in subsequent federal litigation.

The case was remanded back to the District Court for proceedings consistent with the opinion. District Court judge Sara Evans Barker should do more than that. Every member of the Election Board (Democrat Mark Sullivan, (now slated Republican judge) Patrick J. Dietrick, and Clerk Beth White) are attorneys. Some of the people who enforced the illegal Board decision are also attorneys. Every last one of them knew a federal court had declared the statute unconstitutional and knew the Election Board had agreed not to enforce it in the 2003 case. Yet they all enforced it anyway in the 2012 primary. Undoubtedly they knew that they knew they were violating a federal court order, but also knew Mulholland would have no way to be made whole after the election was over. Worse yet, when Mulholland did sue, the Election Board (over the notable objections of Clerk White) did proceed to hire a Democrat and Republican who have been milking taxpayers over a lawsuit that should have immediately been settled. Last July the Council approved at least $150,000 in attorney's fees for the case. (There may well be another bill coming.)

We atorneys are officers of the court. We are obligated to follow the orders of the court, regardless of whether we like them. The knowing failure to do so is contemptuous, a direct affront to the authority of the court. These attorneys knowingly violated a federal court order to harm a person they knew perfectly well would have no satisfactory remedy after the election. Judge Barker should issue a Rule to Show Cause and bring every one of those attorneys who acted to adopt and enforce the illegal Board decision to seize Mulholland's literature into her courtroom to explain why they should not be held in contempt of court for their conduct.

Unigov, the primary right now is the only thing that provides a modicum of protection for Marion County voters when it comes to the thoroughly corrupt Marion County slating process. Otherwise, something similar to our corrupt slating process, which is easily rigged, becoming the nomination process for all 92 counties. No thank you.

Question: isn't the Board acting in a judicial capacity when it meets and votes on enforcement? Wouldn't some sort of judicial immunity apply? not saying that they should be enforcing the anti slating statute, just wondering.

Not sure judicial immunity, but some type of immunity might attach to prevent personal liability of the Board members. But what Hamilton was saying was that they've been warned and if they knowingly do it again, that immunity might be considered waived. If the Board members can't be held personally liable, and only the taxpayers are on the hook, this is likely to happen again. What they ought to do is to hold them in contempt as attorneys. They knowingly violated a court order and every one of them is an attorney.

Government play a big role in our society and it is very important for it to be honest and fair. Government shouldn’t rob people with the help of taxes and conversely it should take care of all citizens and to create appropriate conditions for business to develop. Britain Loan will also give a good chance to develop business or to satisfy any consumers’ needs.

About Me

I have been an attorney since the Fall of 1987. I have worked in every branch of government, including a stint as a Deputy Attorney General, a clerk for a judge on the Indiana Court of Appeals, and I have worked three sessions at the Indiana State Senate.
During my time as a lawyer, I have worked not only in various government positions, but also in private practice as a trial attorney handing an assortment of mostly civil cases.
I have also been politically active and run this blog in an effort to add my voice to those calling for reform.